Section 5 challenges reach Court (FURTHER UPDATE)

FURTHER UPDATE Tuesday 12:01 p.m. The Shelby County case has now been docketed as 12-96. In addition, the following post has been modified to clarify the nature of the Shelby County challenge.

UPDATE 2:20 p.m. The following post has been updated with the filing of the Shelby County petition. Links to that petition and discussion of it have been added. The Kinston case, Nix v. Holder, has now been docketed as 12-81. There is no docket number yet for the other case, Shelby County v. Holder.)

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Attorneys for challengers to the constitutionality of the 1965 voting rights law’s key provision for federal regulation of state and local election laws urged the Supreme Court on Friday to settle the issue in the next Term, starting October 1. One new case arrived from the town of Kinston in North Carolina and a second came from Shelby County in Alabama. The D.C. Circuit Court has upheld the provision at issue — Section 5 — although the Supreme Court itself three years ago raised significant questions about its validity.

The Kinston case reached the Court this morning. The petition is here, and the appendix (a large file) is here. The Shelby County case was filed in early afternoon; the petition is here, and the lengthy D.C. Circuit Court ruling in that case is here. Not only has the time come to examine the constitutional questions the Court has raised, the Kinston petition argued, but the Justice Department’s “overzealous manner” of enforcement of Section 5 has put heavy new burdens on state and local governments covered by that provision. The Shelby County petition argued that the renewed law puts states into “federal receivership,” raising “fundamental questions of state sovereignty,” while denying equality only to designated states — predominantly in the South. Shelby County also assailed the Justice Department’s “needlessly aggressive exercise” of its veto powers over state and local election laws.

Although the Kinston case was found to be moot by the D.C. Circuit, the petition challenged that conclusion and argued that the Justices should grant review of both that case and the one from Shelby County, contending that the North Carolina case pinpoints some of the key alterations in the law made by Congress in 2006. When Congress renewed Section 5 for an additional 25 years, it imposed added requirements on state and local governments covered by that section, toughening the standards for Washington approval of election law changes. The challengers in the Kinston litigation argued that those new burdens prove even more convincingly that Section 5 is now unconstitutionally broad as it applies to the state and local governments that remain the only ones targeted by Section 5. Shelby County’s petition contended that the new requirements reinforce its argument that the entire 2006 renewal law is invalid.

Section 5 applies throughout nine states, and to various county or city governments in seven other states. The provision requires state and local governments that had a prior record of racial bias in voting to submit any change in their election laws, in advance of implementing such a change, either to the Justice Department or to a special three-judge District Court in Washington. Only if a change was given “pre-clearance” in Washington could it be put into effect. When the Supreme Court was last faced with a constituitonal challenge to Section 5, three years ago, it bypassed the constitutional question by expanding the option of covered governments to “bail out.” In doing so, however, the Court raised a variety of questions that suggested that the coverage formula may be seriously out of date, and thus may no longer be justified for just those covered governments.

The negative comments by the Court then encouraged challengers to go after Section 5 anew. The Kinston and Shelby County cases were among a series of new challenges, along with lawsuits by states that seek to enforce new photo ID requirements for voters, but have been blocked by Justice Department objections.

In its petition, Shelby County said that Section 5 interferes directly in “the basic operation of state and local government,” which has the practical effect of barring “the implementation of more than 100,000 electoral changes (more than 99 percent of which will be noncontroversial) unless and until they are pre-cleared by federal officials in Washington, D.C. … A covered jurisdiction must either go hat in hand to DOJ officialdom to seek approval, or embark on expensive litigation in a remote judicial venue if it wishes to make any change to its election system. It should be no surprise, then, that states such as Florida, Texas, and Alaska have joined Shelby County in challenging the 2006 reauthorization.”

It summed up: “Only this Court, the ultimate guardian and arbiter of the division of powers that lies at the heart of our constitutional system, can settle these important issues.” Although the Court had previously upheld Section 5, the county petition argued, a new assessment is necessary to judge “whether Section 5’s current needs justify its current burdens.” The constitutional issues, it added, “will continue to fester until they are definitively settled.”

The Shelby County case is a challenge to the 2006 extension both for its unchanged definition of the state and local governments that are targeted, as well as to the new requirements for pre-clearance that were imposed on those governments. The Kinston case is a challenge to the extension with a special emphasis on the new pre-clearance standard. “This Court should grant review of both cases,” the North Carolina petition argued, in order “to facilitate a timely and definitive resolution of the exceptionally important question whether the 2006 version of Section 5 is facially valid.”

Here, in paraphrase, is the way the Kinston petition described the before and after versions of the two changes that Congress made in the pre-clearance standard:

Before: A state or local government could be barred from making a change only if it had the purpose or the effect of taking away some of the voting power of minorities, taking into account all circumstances. Without that kind of proof, a government entity need not make a change to make minorities better off. After: The Justice Department can now object to a change that it believes discriminates against minorities by failing to make them better off. (This might be called the “Bossier II change” because Congress made it in 2006 in response to a Supreme Court decision in 2000, in the case of Reno v. Bossier Parish, that Congress found had frustrated the goals of Section 5.)

Before: Even if a change would take away some of the voting power of minorities, the change could be made anyway if the state or local government had offset that loss by doing something to improve minorities’ voting power, or if it really had no choice but to make the change. After: A state or local government must provide proof that the change would not diminish the ability of minorities “to elect their preferred candidates of choice.” This makes minorities’ election success the decisive factor on whether they have lost voting power. (That might be called the “Ashcroft change”because Congress in 2006 was reacting to a 2003 Supreme Court decision, Georgia v. Ashcroft, which the lawmakers saw as narrowing the protection for minorities under Section 5.)

In adopting those changes, the Kinston case lawyers argued, Congress essentially wiped out the Supreme Court rulings in Ashcroft and Bossier II. The effect of those alterations of Section 5, that petition asserted, is to put a new and unconstitutional emphasis on using race, with the Justice Department conditioning its pre-clearance upon the use of race as a determining factor. Shelby County, too, argued in its petition that Congress’ challenge to those two rulings by the expanded pre-clearance hurdle “compounded the problem” of relying on an out-of-date coverage formula.

The Kinston case grew out of a 2008 voter-approved change in the way Kinston chose its local government officials, from one based on party identification of candidates to a non-partisan approach. Because Kinston is located in a county covered by Section 5, it needed Washington clearance to implement the change. The Justice Department objected, contending that switching to non-partisan voting would diminish blacks’ voting strength because it would not allow their preferred candidates who had run as Democrats to count on the voters of whites who also were Democrats.

Section 5 was then challenged in federal court by John Nix, who had wanted to run as a non-party candidate for city council, and by a local organization that favored non-partisan elections. The lawsuit challenged the old and unchanged coverage formula, and the new changes in the pre-clearance standard. A federal District judge rejected both challenges. But, during briefing in the D.C. Circuit Court, the Justice Department changed position, and said it was withdrawing its objection to the switch to non-partisan voting. That led the Circuit Court to conclude that the Kinston case was now moot.

In the petition to the Supreme Court, the Kinston challengers argued that the Department’s claim of “new evidence” was only “a transparent pretext for DOJ to try to moot this case to avoid defending on appeal the 2006 amendments” — amendments that had not been challenged in the separate Shelby County case. No other challenger has specifically protested in court against those changes, the petition said. “This Court cannot properly discharge [its] vital responsibility without fully considering the nature and degree of the burden that the substantive pre-clearance standard imposes.”

With the issue of mootness in that case, the petition went on, the Supreme Court should still vote to grant multiple cases — the two new ones — in order to address the full range of issues now affecting Section 5. In any event, they contended, the D.C. Circuit was clearly wrong in allowing the Justice Deparmtent to come in at the last minute to try to scuttle the broader challenge to the 2006 extension of Section 5.

In its challenge to Section 5 on the merits, the Kinston petition argued that the Supreme Court had sent a clear signal to Congress that it ought to consider modifying the coverage formula for Section 5, based as it is on out-of-date considerations. But, it noted, Congress has done nothing to respond to the Court’s constitutional concerns. “In the three years since,” the petition said, “Congress has refused to take any action, declining to update (or even revisit) the pre-clearance regime to ensure that its ‘disparate geographic coverage is sufficiently related to the problem that it targets,’ ” quoting from the Court’s 2009 opinion in the case of Northwest Austin v. Holder.

Shelby County’s petition echoed that complaint. “In the more than three years after Northwest Austin, Congress held not one hearing, proposed not one bill, and amended not one law in response to the concern” that Section 5 and other coverage formulas in the 1965 law are not justified by the evidence before Congress in 2006. While praising Congress for enacting the original bill in 1965, when it crafted “a coverage formula that was sound in theory and in practice” at that time, the same cannot be said of the 2006 extension, according to the county’s filing.

Besides challenging Section 5 itself, the Shelby County petition also contests the constitutionality of the 1965 law’s Section 4(b), which is the provision that lays out the formula that brought a state or a local government under Section 5’s pre-clearance requirement.

Shelby County, while it is covered by the law, did not file its lawsuit after having a voting change vetoed by the Justice Department or by a federal court. Instead, it filed a lawsuit seeking to strike down the 2006 renewal as written, so that, if this challenge succeeded, the law could not be validly applied in any factual situation.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.